Excerpt:.....for the purpose of this case, it is enough to say that that principle is that, where the owner of land, for his own convenience, diverts or interferes with the course of a stream, he will be liable for all direct and proximate damage, unless he can show that the escape of the water was caused by vis major or the act of god or the like. the principle therefore is of very great antiquity, and it was well established in the roman law and has been accepted and enforced by the courts in england, and in this country including burma. it may be that this was done for the purpose of protecting the railway bridge and for other praiseworthy motives, but it does not cease to be a wrongful act merely because the motive was a good one. the law does not permit a man even for a good motive to do what..........land, provided he does not interfere with the alveus or with a recognised flood channel, but if flood water comes on to his land he must not take active steps to turn it on to his neighbour's property.4. this in my opinion is the correct view of the law on the subject and there is nothing in any of the cases relied upon by the advocate for the appellant which militates against this view. the difference between taking protective measures against a future danger and getting rid of or diverting the danger after it has come, that is to say, a present danger, is referred to even in the earliest case, menzies v. earl of breadalbane (1828) 32 r.r. 103 : 3 bligh (n.s.) 414 : 4 e.r. 1387 which is the locus classicus on the subject. reference is made there to certain passages in the digest 39,.....

Judgment:

Pandrang Row, J.

1. There is no dispute about the facts of this case. In fact, we have the admission of the defendant Railway Company itself that the act complained of was one performed by one of their officers. Paragraph 2 of the written statement of the Company, which has been extracted in full by my learned brother, is clear on the point. In substance, the Company admits that water in the stream swelled into a flood on account of heavy rains on 27th July, 1925 and rose so as to submerge the bridge and threatened to wash away the bridge and the railway lines, endangering the property and also the plaintiff's lands and that thereupon the Company's Permanent Way Inspector made an opening in the northern bank of the stream at a point within its own limits solely for the purpose of averting imminent danger to its property. In other words the Company's attitude was:

We have done what is complained of, but we were justified in doing it and we did no wrong in doing it.

2. That was the main defence, namely, a justification of what they had done. There was a further defence put forward' which was based on what might be called the right to abate the nuisance which had been committed by the plaintiff by raising the bank of the stream in question in 1923. This defence needs no further consideration, because it has not been pressed before us during the hearing of those appeals. A further defence which was not raised in the written statement appears to have been raised in the lower appellate Court, namely, that the flooding of the plaintiff's lands was inevitable and therefore the plaintiff was not entitled to get damages, reliance being placed on Thomas v. Birmingham Canal Co (1879) 43 L.T. 435. But this contention was not pressed by the learned Government Pleader who appeared for the appellant-company and it is enough to point out that the finding of the lower appellate Court is to the effect that the inevitability of the flooding of the plaintiff's lands was not established.

3. The main defence, therefore, that is left is the defence of justification and on this point a very elaborate argument was addressed to us supported by copious references to English Law beginning with Menzies v. Earl of Breadalbane (1828) 32 R.R. 103 : 3 Bligh (N.S.) 414 : 4 E.R. 1387. The general principle regulating the liability of land-holders with regard to the escape and overflow of water has been stated, in my opinion, correctly in Coulson and Forbes on the Law of Waters, 5th Ed. at page 143. In substance, for the purpose of this case, it is enough to say that that principle is that, where the owner of land, for his own convenience, diverts or interferes with the course of a stream, he will be liable for all direct and proximate damage, unless he can show that the escape of the water was caused by vis major or the act of God or the like. The cases referred to in the argument have all been discussed in Coulson and Forbes and the result is summed up, so far as the present point is concerned, at page 172 as follows:

The result of the cases appears to be that a riparian owner may make defences against floods anywhere on his own land, provided he does not interfere with the alveus or with a recognised flood channel, but if flood water comes on to his land he must not take active steps to turn it on to his neighbour's property.

4. This in my opinion is the correct view of the law on the subject and there is nothing in any of the cases relied upon by the Advocate for the appellant which militates against this view. The difference between taking protective measures against a future danger and getting rid of or diverting the danger after it has come, that is to say, a present danger, is referred to even in the earliest case, Menzies v. Earl of Breadalbane (1828) 32 R.R. 103 : 3 Bligh (N.S.) 414 : 4 E.R. 1387 which is the locus classicus on the subject. Reference is made there to certain passages in the Digest 39, 1.1.1. to the effect that the action aquae pluviae arcendae will lie as often as water is about to do harm in the field of a neighbour by reason of the hand of man, that is, if by something that was done by the hand of man water flows differently than it would flow by nature. This is the general principle. Reference is, no doubt, also made to the existence of some other passages in the Digest which appear to have a contrary tendency. One of these is apparently Digest 39, 3.2.9. which is to the effect that if a person diverts a torrent so that the water might not reach him and if by this a neighbour is injured, the latter cannot have the action aquae pluviae arcendae; for to ward off water means only not letting it flow in (to injure). (Sivicinus flumen torrentem averterit, ne aqua ad eum pervenit, et hoc modo sit effectum, ut vicino noceatur, agi cum eo aquae pluviae arcendae non posse; aquam enim arcere, hoc esse, curare ne influat). In fact the principle that no one can by his own act cause water to overflow into his neighbour's fields so as to damage them is one of the most ancient principles known to law. That principle is found even in the most ancient Code of laws that has come down to us, namely, the Code of Hammurabi, which is about 5,000 years old and which provides that, if a breach occurs in a man's irrigating dam by reason of his negligence and laziness and his neighbour's fields are flooded by the overflow of water therefrom, the man in whose dam the breach has occurred shall re-imburse the loss. The same principle is repeated in another provision of that Code which says if any one opens his canal in a negligent manner and thereby floods the fields of his neighbours, he shall be held liable to account to those neighbours and to pay them grain corresponding with their losses. The principle therefore is of very great antiquity, and it was well established in the Roman Law and has been accepted and enforced by the Courts in England, and in this country including Burma. Reference may be made in this connection to the decision of the Privy Council in Maung Bya v. Maung Kyi Nyo (1925) 49 M.L.J. 282 : L.R. 52 IndAp 385 : I.L.R. 3 Rang. 494 (P.C.) where it is stated that the law applicable in Burma to the flow of and flooding by fresh water rivers or water-courses, whether they be natural or artificial, or trespasses on the bed and soil of such rivers and streams, is the same as that in England. In that case their Lordships of the Judicial Committee relied on Menzies v. Earl of Breadalbane (1828) 32 R.R. 103 : 3 Bligh (N.S.) 414 : 4 E.R. 1387, though by a curious slip the judgment in that case is attributed to Lord Eldon instead of to Lord Lyndhurst who was the Lord Chancellor in 1828 when the decision was pronounced, Lord Eldon having resigned his office after his long tenure of it in the previous year on the accession of Canning to power. In no subsequent case was any doubt thrown on the difference between protective measures taken against a future or anticipated flood and the actual diversion of a flood after it had come. That difference, so far as Madras is concerned, has been stressed in Gopal Reddi v. Chinna Reddi : (1894)4MLJ244 . The difference is stressed in Whalley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131 which is referred to and followed in Gopala Kristna Yachendrula Varu v. Secretary of State (1914) 26 I.C. 800 in which reference is also made to Attorney-General v. Earl of Lonsdale I.L.R. (1921) 43 All. 688. The important point to remember is that in the present case we are not dealing with a protecting dam or a barricade put up against a flood, but we have before us a case in which the protecting wall or bank of a natural water-course was itself cut and the water of the stream diverted when the flood was actually on. The lower appellate Court's quotation from Clerk and Lindsell on Torts in paragraph 14 of its judgment is quite apposite and it is enough to refer only to a portion thereof to the following effect:

Even where the flood is extraordinary if the water has already invaded the land and collected on it, the owner may not, in order to protect himself against the consequences of the water remaining there, dig a cut for the purpose of getting rid of the water, if by so doing, he will cause damage to the parties on whose land he discharges it, for there is a difference between protecting yourself from an injury which is not yet suffered by you and getting rid of the consequences of an injury which has occurred to you.

5. The same view is taken in Sami-ullah v. Makund Lal I.L.R. (1921) 43 All. 688. Reference may also be made to the recent case, Lankapara Tea Co., Ltd. v. Gopalpur Tea Co., Ltd. I.L.R. (1936) 63 Cal. 1008, where at page 1021 the statement in Coulson and Forbes at page 172 already quoted above, has been approved.

6. The cut was made in the present case in what was undoubtedly the bank of the river or stream with the knowledge, and, indeed it may be said, with the object of diverting the flood water from its natural course along the stream into the plaintiff's lands. A river is said to consist of the bed, the bank and the water but in fact the bank is really the outermost part of the bed in which the river naturally flows. It is the natural wall which contains the water in the stream and holds it to its course. Any interference with the water-course in this manner must necessarily be wrongful, and I do not think that any doubt has ever existed on this point. What is wrongful cannot be justified by reason of the fact that the wrongful act was committed for the purpose of getting rid of danger or damage to oneself. Such selfishness cannot be regarded as reasonable selfishness. The judicial imprimatur to reasonable selfishness was given by Bramwell B. in Nield v. London and North Western Railway Co. (1874) L.R. 10 Ex. 4, but that was a case which related to an artificial canal and not to a natural stream, and it was expressly stated there that there was no duty on the owners of a canal analogous to that on the owners of a natural water-course not to impede the flow of water down it, and I may add, nor to divert such flow. In another case, namely, Maxey Drainage Board v. Great Northern Railway Co. (1912) 106 L.T. 429, which was also relied upon on behalf of the appellant company, what was done by the defendants was a protective work against an anticipated common danger, and in that case Lush, J., at page 431 observes that, if it could have been shown that the defendants, when water or filth was on their land, had, by artificial means, discharged it on to their neighbour's land, they would be liable. Even if it be that there is no duty cast by law on frontagers of non-tidal rivers to maintain the natural protecting walls or banks at their usual height on the ground that, as held by Lord Esher, M.R., in West Norfolk Farmers' Manure Co. v. Archdale (1886) 16 Q.B.D. 754 the doctrine established in Attorney-General v. Tomline (1880) 14 Ch. D. 58 was meant to apply only to natural protecting banks against the sea and the waters of tidal rivers, it does not follow that the cutting of such natural protecting walls or banks of non-tidal rivers is permitted by law or that it does not constitute a wrong. In Nitro-Phosphate and Odam's Chemical Manure Co. v. London and St. Katharine Docks Co. (1878) 9 Ch. D. 503, there is a reference to the ordinary liability of a riverain proprietor who intermeddles with an existing river-wall which it is his duty to maintain and it is added that there can be no such maintenance if there is any opening in it, as an inclosure or defence not continuous is no inclosure or defence at all. The present case is a much stronger one, for it is not a case of mere neglect of duty to maintain the river-wall but an active cutting down of that wall deliberately and wilfully and with knowledge of the consequences. It may be that this was done for the purpose of protecting the railway bridge and for other praiseworthy motives, but it does not cease to be a wrongful act merely because the motive was a good one. The law does not permit a man even for a good motive to do what is wrongful. The end does not justify the means. The statement of the law contained in Halsbury Vol. 28, pages 453, 454 and 456 is also clear on the point that, while a person can protect his own property by some defensive measure for the purpose of warding off a danger and prevent the danger from coming into his land, he would be liable, if he diverts or interferes with the course of a stream on his own land, for all direct and proximate damage resulting from such overflow. It would suffice to refer to two more cases, Fletcher v. Smith (1877) 2 A.C. 781 and Greenock Corporation v. Caledonian Railway (1917) A.C. 556 the latter being a case of interference with the natural course of a natural stream, though not by cutting the bank of the stream, but by substituting an artificial water-course for the natural water course. It was held in that case that, even though the flood was an extraordinary one wholly unprecedented, the company which made the diversion was liable. Lord Wrenbury said that the case was not analogous to that of a man who has brought a wild beast upon his land and has effectually chained it and the chain has been broken by the act of God as was the case in Nichols v. Marsland (1876) L.R. 2 Ex. 1 but that it was a case in which the act of God (if there was one) brought the wild beast, and (but for the act of man) there was a safe exit for the wild beast and it would have gone away and there would have been no injury. The act of man consisted in closing the exit, which, had it remained, would have rendered the advent of the wild beast harmless. In the present case, however, there was no closing of the exit but the making of a different exit, different from the natural exit, for the flood water, with full knowledge that the consequences of such diversion would be to damage the plaintiff's property.

7. One more reference and that to the statement of the law in Salmond on the Law of Torts my perhaps be made. At page 576 the rule of law is laid down as follows:

Although a person is not responsible for allowing the escape of things which are naturally on his land, he is responsible for causing their escape. He is not entitled to relieve his own land of a burden by casting it upon the land of his neighbour. Thus he is responsible for the escape of water from his land, if the escape is due to some embankment, channel or other artificial structure made or maintained by him there, or to any other alteration in the natural condition of his land.

8. It is unnecessary to multiply authority on this point which to my mind is very clear. This is certainly a case in which there has been considerable damage, and the only point urged was that there was no injuria. But from what I have said above it is clear that in this case there is both injuria as well as damnum. It therefore follows that the decrees appealed from are right and that the second appeals should be dismissed with costs.

9. There is a memorandum of cross-objections filed in one of these appeals, S.A. No. 1566 of 1931, on which nothing has been said though attention was directed to its existence. It is therefore unnecessary to say anything about it except that it is dismissed but without costs.

Venkataramana Rao, J.

10. These second appeals raise a question as to the right of a land-owner to divert the flood water of a natural stream passing through his land on to adjoining lands to save his property from injury. The facts are not in dispute. There is a natural stream known as Gorrikandi which passes through Gollaprolu village which belongs to the plaintiff and irrigates the lands in the said village and other villages. It runs from west to east. There are bunds on either side of the stream which are mostly of sand and earth and they form the banks of the stream and conserve and confine the ordinary course of the stream within them. The railway line of the defendant, the Madras and Southern Mahratta Railway Company, Ltd., from Madras to Waltair, passes through the village of Gollaprolu and runs from south to north. There is a railway bridge belonging to the railway company across the stream in the village of Gollaprolu. It is also a fact that Gorrikandi is a rapid stream at or about the suit locality. On or about 27th July, 1925, there were heavy rains, the result of which was to cause high floods in the stream. On the 28th July, 1925, it was found at about 10 A.M. that the water had considerably risen in the stream. The Permanent Way Inspector who was on the spot thought that owing to the impact of water the bridge was in danger. He waited for two hours and then resolved to cut open the northern side of the bund to the east of the bridge to prevent danger to the bridge and to the travelling public. He accordingly did so. The result was the flooding of the lands of the plaintiff and the consequent damage to them. It was found that the Inspector did not act negligently but acted bona fide with the intention aforesaid. It was also found that the site of the bund at the suit locality was the property of the railway company and the place where the breach was effected was within its limits. The suit out of which S.A. No. 1566 of 1931 has arisen was filed by the Maharajah of Pithapuram, as the then proprietor of the Gollaprolu estate, for damages and other reliefs. A similar claim was made by the tenants of the estate in regard to the lands in their occupation in the suit out of which S.A. No. 1572 arises. The allegations in the plaints in both the suits are more or less similar. The plaintiff in the suit out of which S.A. No. 1566 of 1931 arises, after alleging wrongful opening of the bund and diversion of water, puts the basis of the claim thus in paragraph 10 of the plaint:

The bund has been in existence from time immemorial at that height till the defendant interfered with it and has served to protect the plaintiff's lands on the north from floods and also to ensure a steady supply of water to the plaintiff's, lands at the tail end of the stream. The plaintiff is entitled to enjoy the protection afforded, as aforesaid, by the bund in the accustomed manner and without interference by the defendant.

11. The main defence of the Railway Company is thus formulated in paragraphs 2 and 3 of the written statement:

2. The defendant company states that on or about the 27th July, 1925, there were heavy rains in and about Gollaprolu and the water in the Gorrikandi stream swelled into a flood and rose so as to submerge the girders of the defendant Company's bridge No. 449 over the said stream and threatened to wash away the bridge and the railway line thus endangering the property of the defendant company and the safety of the public and also the plaintiff's lands. Thereupon, the defendant company's Permanent Way Inspector made an opening in the northern bank of the stream at a point lying within its own limits solely for the purpose of averting imminent danger to its property which was occasioned by forces beyond the defendant company's control.

3. The defendant company charges that in the circumstances it was legally justified in the steps it took to defend its property and is not liable to the plaintiff in damages or otherwise for any injury caused by the flood water flowing on to the plaintiff's lands as a consequence of measures taken in defence of its property.

12. Both the Courts gave a decree in favour of the plaintiffs for damages. These second appeals are against the decrees in the said suits. The question, therefore, is, is the railway company liable in the circumstances and on the facts admitted and found as above?

13. It is well settled that an owner of land by or near a river is not entitled to make any change in the alveus and disturb the ordinary course of the river. The effect of such interference might be to direct the flow of the river with a great degree of violence upon the opposite bank or upon some other portion of the same bank and would be productive of considerable damage to property at or near the said bank. As a necessary corollary to this, it has been laid down that the course which the flood water takes should not be changed to the prejudice of the proprietors lower down vide Menzies v. Earl of Breadalbane (1828) 32 R.R. 103 : 3 Bligh (N.S.) 414 : 4 E.R. 1387 and the natural barriers should not be cut so as to permit water to flow where otherwise it would not. Cf. Attorney-General v. Tomline (1880) 14 Ch. D. 58. This obligation is imposed by law irrespective of the ownership of the bed. Of course a landlord may take such precautions on his lands to defend his property against flood, but always subject to the limitation that he cannot interfere with the alveus of the river. Viscount Cave in Gerrard v. Crowe (1921) 1 A.C. 395.

14. It is admitted in the written statement that the bunds in this case form the banks of the stream. The bank is only the outermost part of the bed on which the river naturally flows. The bunds therefore form the natural barriers confining the flow of water in a particular course. As observed by the learned Judges in Sami-ullah v. Makund Lal I.L.R. (1921) 43 All. 688:

Where there is a natural outlet for a natural stream, no one has power, for the safety of his own property, to divert or interfere with its flow, and if he does so, he is ordinarily liable to pay to any one who is injured by his act, no matter how the water, before the mischief, came into the watercourse.

15. Therefore the cutting open of the bund is an interference with the natural outlet of the water in the stream in question. Mr. Krishnaswami Aiyangar relied on a passage in Salmond on the Law of Torts to the effect that a landowner may lawfully remove from his land an enbankment or other artificial structure which serves as a protection to the adjoining land of his neighbour against the natural flow of water. There is no evidence given in this case that the natural flow of flood water was through the lands of the plaintiff and that the bund is an artificial protection against the said natural flow. On the other hand, it is conceded in the written statement, as pointed out above, that it is a natural barrier, being the bank of a stream. Therefore the observations of the learned writer have no application to the facts of the present case.

16. It is again contended that the rule above stated in regard to the obligation not to divert the flow of a natural stream would not apply to a case of extraordinary flood and certain observations of the Lord Chancellor in Menzies v. Earl of Breadalbane (1828) 32 R.R. 103 : 3 Bligh (N.S.) 414 : 4 E.R. 1387 have been relied on, namely:

These passages to which I am now alluding, have reference to the accidental and extraordinary casualties from the flood suddenly bursting forth, and they go to this, that, in such a case, the parties may, even to the prejudice of their neighbours, for the sake of self-preservation, guard themselves against the consequence.

17. But here comes the distinction made in law between steps taken to prevent an extraordinary flood coming on and steps taken to divert it when the flood is on, or, in other words, between strictly protective measures and measures actively transferring the flood water on to the land of another.

18. One of the recognised exceptions to the maxim 'sic utere tuo ut alienum non laedas' is that a landowner can erect works on his land or take steps to prevent a risk from a common enemy such as rain, floods or incursions from the sea. The law allows 'a reasonable selfishness' in doing so even though damage might be caused to a neighbour thereafter. As Lord Bramweli observes in Nield v. London and N.W. Railway Co. (1874) L.R. 10 Ex. 4 :

He who puts up a barricade against a flood is entitled to say to his neighbour who complains of it : 'Why did not you do the same?'

If an extraordinary flood is seen to be coming upon land, the owner of such land may fence off and protect his land from it, and so turn it away, without being responsible for the consequences, although his neighbour may be injured by it.

20. But he then adds:

Of course there is a difference between protecting yourself from an injury which is not yet suffered by you, and getting rid of the consequences of an injury which has occurred to you.

21. The rule of law is thus stated in Theobald's Law of Land at page 6:

A landowner may protect his land against an unsual flood, though he may thereby cause an injury to a neighbour; but if an excess of water has come on to a man's land, for instance, by an unusually heavy rainfall, he must not, in order to get rid of it, do any act which would have the effect of casting it on his neighbour's land in such a way as to cause damage, which would not have been caused if the act had not been done. Nield v. London and N.W. Railway Co. (1874) L.R. 10 Ex. 4 and Walley v. Lancashire and Yorkshire Railway Co. (1884) 13 Q.B.D. 131 at 140 See Thomas v. Birmingham Canal Navigation's Proprietors Co. (1879) 43 L.T. 435

The right of a person to protect his land from extraordinary flood extends to the doing of anything which is reasonably necessary to save his property; but he cannot actively adopt such a course as might have the effect of diverting the mischief from his land to the land of another person which would otherwise have been protected.

23. In this case what was done was to cut open the bund and let down the water in concentrated violence on to the plaintiff's lands. That is active transference of the mischief and not a protective measure in anticipation of apprehended danger. The defendants therefore cannot escape liability for their action. Nor can they plead successfully that the occasion was such that there was no exercise of volition behind the action, as in the case of the lighted squib Scott v. Shepherd (1773) 2 Black W. 892 : 96 E.R. 525 for, according to the evidence, the Permanent Way Inspector waited for two hours before he deliberately did the act now complained of. The Railway Company is therefore liable for the damage to the lands of the plaintiff and the decree of the Lower Courts is correct. The second appeals fail and are dismissed with costs. The memorandum' of objections in S.A. No. 1566 of 1931 is dismissed without costs.